Mobile telephone networks - Claimants entering into agreements for use of sites by mobile phone network operators
Arqiva Ltd and other companies v Everything Everywhere Ltd and other companies: QBD (TCC) (Mr Justice Ramsey): 26 July 2011
The claimants entered into agreements with MNOs granting them rights in relation to the sites. The MNOs operated pursuant to spectrum licences granted by the Office of Communications (Ofcom) which entitled the MNOs to operate on a particular frequency. In January 1995, an agreement for site-sharing facilities was made between the BBC, now the second claimant, and the second defendant, OPCS (the Orange MSSA).
In September 1995, National Telecommunications Ltd (NTL), now the first claimant, and Hutchison Telecommunications (UK) Ltd entered into a national enabling agreement (the Orange NEA) and a site-sharing licence (the Orange SSL). In December 2008, the first defendant, EE, the fifth defendant, H3G, and the fourth defendant, MBNL, entered into a suite of agreements which included a framework agreement (the FA) and a master site share agreement (the MSSA).
Under those agreements EE and H3G were to retain, install and separately use unconsolidated equipment and install and jointly use consolidated equipment on the claimants’ sites. In July 2010, an agreement was entered into between OPCS and EE under which there would be integration of the operations of EE and OPCS. Subsequently, EE and OPCS commenced the provision to their customers of a roaming facility which included the sending and receipt by EE of signals on the OPCS frequency and vice versa.
In November, the Orange NEA and the Orange SSL expired due to the effluxion of time. In March 2011, the spectrum licences which had been in the name of OPCS were purportedly transferred to EE. The claimants commenced proceedings by which they sought interlocutory injunctions and other relief against the defendants.
The first claimant contended that the transfer of the spectrum licences was invalid under section 30 of the Wireless Telegraphy Act 2006 (the 2006 act) while the defendants contended that the licences had been re-issued by Ofcom and they were entitled to rely on the relevant licences. Ofcom submitted that in re-issuing the licences in the name of EE, it had been acting within the broad power that it was given under section 10 and paragraph 6 of schedule 1 to the 2006 act to vary the ‘terms, provisions or limitations’ of a licence. In determining the issue, consideration was given to the Communications Act 2003 (the 2003 act).
The court held: There was no general power given to Ofcom to vary a licence to substitute a new person as the licence holder, and while the provisions of section 1(3) of the 2003 act might enable administrative changes to be made to licences where company details changed, that provision did not enable Ofcom to change the identity of the licence holder to a different company. Ofcom could revoke the licence under paragraph 6 of schedule 1 to the act but it would then have to deal with any re-issue in accordance with the provisions of the 2006 act (see  of the judgment).
In the circumstances, Ofcom had not had the power under paragraph 6 of schedule 1 to the 2006 act to vary the spectrum licences so as to enable them to re-issue those licences in the name of EE rather than OPCS, the name of the original licence holder. As a result, the re-issued licences were not effective to make the transfer by way of a spectrum trade and it followed that the original spectrum licences in the name of OPCS remained valid (see - of the judgment).
David Blunt QC and Juliette Levy (instructed by Charles Russell) for the claimants; Alex Charlton QC and Matthew Lavy (instructed by Bird & Bird) for the first, second and fourth defendants; Pushpinder Saini QC and Mark Vinall (instructed by Ofcom) for Ofcom.